BACKGROUND
The philosophy of divorce has changed a great deal in the last 35 years.  Long ago divorces were brought on fault grounds, meaning one party sued the other over some wrongdoing.  Massachusetts law still permits fault based divorce, but it's rarely used.  The modern approach is to recognize that the marriage has suffered an “irretrievable breakdown” without spending too much effort worrying about why.  This philosophy is also known as no-fault divorce. 
Divorcing couples generally approach the court in one of two ways, together using a “Joint Petition” for divorce or adversarially using a lawsuit.  The joint petition is called a 1A divorce while the adversarial lawsuit is a 1B.  In the adversarial approach the spouses usually hire lawyers who negotiate for them.  The joint approach is increasingly handled by a single mediator who facilitates the couple’s negotiations and guides them through the process together. 

Time
Divorce always takes some time.  The adversarial approach rarely takes less than six months and often consumes two or more years.  The mediated, 1A approach can be completed in as little as three months if the parties are motivated and work hard on negotiations.

Divorce Agreements
When it's all over every divorcing couple emerges from the process with a written “Divorce Agreement” that’s incorporated into the court judgment granting their divorce.  This agreement is a contract between the parties that spells out how their property is divided and defines their ongoing responsibilities to one another and their children.  After the divorce, portions of the agreement dealing with children are subject to modification by the court to reflect substantially changed circumstances.  Parties usually agree that the remainder of the agreement is not modifiable once the divorce becomes absolute (final).  In most cases, the divorce process revolves around negotiating this agreement. 

Who's to Blame
Divorcing individuals are often concerned with establishing that the other party is the “bad guy” who caused the marital breakup.  That's probably because they're under the impression that courts compensate innocent “good guys” for marital wrongs with money or custody.  That impression is wrong.  Except in egregious cases, it doesn't matter whose behavior caused the breakup when property is divided, alimony and support are awarded, or custody is assigned. 
We can't emphasize this point enough.  If violence or abuse isn't an issue, it's generally futile to rage about the other party's shortcomings as a spouse.  It's much better to spend your energy coming up with reasonable solutions to the problems of ending a marriage.

Financial Statements
A great deal of a divorce action concerns finances.  The big issues are property division and support/alimony.  In order to have financial information available during a proceeding, both sides are required to provide the court and each other with financial statements listing their incomes and expenses along with their assets and liabilities.  Statements provide a basis for negotiations as well as court decisions.  These key documents are updated and included in the paperwork associated with court appearances. 

Violence and Abuse
Additional procedures are necessary when a divorce involves violence or abuse.  Either can already have happened or be threatened or potential.  Abuse can be physical, sexual or emotional.  The offensive behavior can be directed at a spouse or at children. 
The primary tool used to prevent violence or abuse is the restraining order.  Orders usually command offending parties to maintain certain distances from their spouses and/or children.  When threats are made by phone or mail, the court may order that all communication stop.  Failure to obey a restraining order can result in arrest. 

Terminology: Adversarial (1B) and Mediated (1A) Procedures
Lawsuits, including adversarial divorces, are initiated by complaints.  The person making the complaint is the plaintiff.  The person against whom the complaint is made and relief is sought is the defendant.  In a divorce, the plaintiff and defendant are spouses and the relief sought is the divorce along with its financial and custody arrangements. 
A motion is a request made to the court for a smaller, usually temporary order under the umbrella of a complaint.  For example, changes in support or living arrangements while a divorce is pending are requested with motions.
Disobeying court orders during and after a divorce constitutes contempt of court.  Examples include not paying support and refusing to stay away from the other party in defiance of a restraining order.  When that happens the party seeking enforcement can file a Complaint for Contempt.  If that's granted, the court will enlist the aid of the police or the Department of Revenue in forcing compliance with the order.
Divorces are said to be contested or uncontested depending on whether the parties have reached agreement on all issues before an action in court.  Contested does not usually mean one party is resisting the divorce itself.  It means there are unresolved issues that have to be worked out before the divorce is granted. 
In a mediated divorce under 1A procedures, the court’s involvement is initiated by a Joint Petition, which isn’t filed until the parties have negotiated an agreement.  Hence, under the mediated joint approach no one is a plaintiff and no one is a defendant; both parties are simply petitioners.  And since an agreement has been reached before the petition is filed, the action is always uncontested in the eyes of the court. 

PROCEDURE
Joint Petition for Divorce (1A)
In a joint divorce procedure the parties agree on all relevant issues before filing court papers.  This is generally done with the help of a mediator who facilitates the couple’s negotiations and then draws up their agreement in a form suitable for submission to the court.  That agreement is filed along with the joint petition.  Both parties must also sign an affidavit attesting that the marriage is irretrievably broken down and over.
An important element of a 1A divorce is that both parties are satisfied that the other isn't hiding assets or income.  That is, they accept the truthfulness of each other’s financial statements which are also submitted with the joint petition. 
Once 1A papers are filed, a hearing date is set, often in as little as a few weeks.  At the hearing both parties appear and answer a judge’s questions for a few minutes.  The judge is generally just interested in determining that the agreement is fair.  Once he or she is satisfied that it is, the agreement is approved and an order for divorce is entered on the petition. 
The divorce is not final for another four months after the judgment is entered.  This is very important, the parties may not remarry and are still married for tax purposes until that four month period has elapsed. 

Complaint for Divorce (1B)
When the parties have not reached agreement, and at least one wants to move forward, he or she files a complaint for divorce under section 1B of the divorce statute.  The complaint alleges that the marriage is irretrievably broken down and requests a divorce.  (One of several fault grounds can also be alleged but that’s rarely done.)  The other party must answer the complaint within 20 days acknowledging the breakdown. 
Once a 1B action is filed, there's a mandatory six month waiting period until the case can be heard or tried.  (A 1B action can be converted to a 1A if an agreement is reached quickly.)  This is the time for negotiations and/or trial preparation.  One of the most important activities during this period is the legal process of discovery. 

Discovery: Modern litigation is based on the idea that both sides should have access to all information available about the case before trial.  Discovery is the process of obtaining the other side’s information.  Opposing attorneys exchange certain basic information automatically at the outset of a case.  Beyond that there are three major approaches to discovery: 

1. Interrogatories are written questions that must be answered in writing and under oath, usually within 30 days.
2. Depositions are oral examinations taken under oath.  They have the weight of in-court testimony but are accomplished out-of-court. 
3. Requests for the Production of Documents demand key records such as bank statements and tax returns.

The fact that depositions and interrogatories are taken under oath means that lying constitutes perjury.  Unfortunately, that doesn’t always prevent people from hiding assets or income. 
The time consuming and expensive discovery process is generally avoided in a mediated divorce.

Motions and Temporary Orders in a 1B:  The parties to an adversarial divorce usually live separately during the period of negotiation and discovery, so there's generally a need to establish guidelines for temporary support, custody of the children, and who will live in the marital home.  Where abuse is an issue, restraining orders may be necessary to keep one spouse away from the other and/or the children.
If the parties can't agree on these issues, either can initiate a motion for a temporary order.  (Recall that complaints ask the court for large, permanent things like the divorce itself, while motions address smaller issues usually while a complaint is pending.)  Both parties attend a motion hearing at which a judge listens to both sides and decides the issue.
Most motions are sent to a Family Service Office in the courthouse for an abbreviated attempt at a mediated solution to the motion issue before they're presented to a judge.  If that doesn't produce an agreement, the parties go before the court. 
Motions and temporary orders are argued by the parties’ attorneys in court and can be very expensive.  A successfully mediated divorce entirely avoids motions and temporary orders saving the divorcing couple a great deal of money and aggravation.

Resolution:  Approximately ninety percent of adversarial 1B divorce cases settle before going to trial.  When that happens a divorce agreement is drawn up by the attorneys and the parties along with their attorneys take it to a court hearing in which a judge reviews it for fairness before granting the divorce. 
When parties can't agree, they go to trial.  Trial issues usually involve finances or child custody.  Evidence is presented by both sides and a judge makes a decision on the merits of the case.  Trials are always before judges, as there are no jury trials in domestic relations cases in Massachusetts. 
Once a 1B divorce is granted, there's a 90 day waiting period until it becomes absolute.  Once again, the parties are technically married during that period. 

Fault Grounds
There are seven fault grounds for divorce in Massachusetts.  They are:
1.  Cruel and abusive treatment
2.  Desertion
3.  Adultery
4.  Impotency
5.  Habitual intoxication (alcohol or drugs)
6.  Prison
7.  Nonsupport
Fault procedures are similar to those in 1B actions.  The first ground, cruel and abusive treatment is the most common and is not limited to physical abuse.   Fault based divorces are rare today. 

MEDIATION vs. LITIGATION
Mediation is a cost effective approach to divorce which often produces results that are superior to those of an adversarial process.  It does however require that the parties work together with the mediator to resolve problems.  Many judges strongly recommend the mediation approach.  It is far less costly and stressful for the divorcing couple as well as for their children than an adversarial divorce. 
Couples pursuing a mediated divorce use one mediator rather than two lawyers to help them come to a satisfactory agreement.  Divorce mediators are usually attorneys. 
Once an agreement is reached the attorney/mediator writes it up in good legal form along with the other paperwork required for a divorce.  The couple then proceeds to court “pro se” (by themselves) and requests a 1A divorce. 
In a mediated divorce all contested issues are worked out between the parties before the court is involved.  In other words, the court is presented with a finished agreement along with the 1A Joint Petition.  All the judge has to do is check for fairness.  This avoids two lawyer discovery, motions, motion hearings, temporary orders and court appearances.  It can save a great deal of time, stress and money if the parties are on reasonably good terms, can communicate with one another, and are willing to work together.

DIVISION OF PROPERTY
In Massachusetts, all property owned jointly or by either party is potentially divisible in a divorce.  It doesn't matter where the property came from or whether one party owned it prior to the marriage; it's all subject to division.  That includes pension rights, interests in businesses, and amounts owed to either party.
Massachusetts is an equitable (fair) division state.  Don't confuse that with community property in which everything acquired during the marriage is split equally, but inheritances and previously owned assets can be kept separate.  In Massachusetts everything is divisible into proportions the court deems to be fair. 
The fact that everything is potentially divisible doesn't mean all property is split evenly.  Courts consider the entire situation in deciding what's fair.  That includes, among other things, who earned the money, whether it was inherited or previously owned, each party's age, their occupations, their non-economic contribution to the marriage, and their ongoing incomes and needs. 
The length of the marriage is also an important issue.  In a short term (generally less than five years) marriage a judge is likely to give considerable weight to who owned what before the wedding and how money was earned.  After a long term (usually more than fifteen years) marriage, that's generally not the case.  The classic example is a working husband who earned most of the income and a stay-home wife who kept house and raised the children.  In such circumstances, courts tend to recognize the couple as equal partners and divide their assets accordingly. 
Indivisible assets like the family home can be a problem.  If one spouse wants the house the easiest solution is to let him or her keep it compensating the other for their share of equity with other assets or through a refinancing.   Unfortunately, financial resources sufficient to do that often aren’t available.
Businesses are also difficult.  It's generally counter productive to award one spouse an ownership interest in a business run by the other spouse.  Nevertheless, the business is a marital asset, and the departing spouse may be entitled to a share.  That usually means the operation has to be appraised and the departing spouse compensated for some of its value. 

ALIMONY
Alimony is another area in which the rules of divorce have changed dramatically.  At one time alimony was always paid by men to women, and was usually for life or until the wife remarried.  That's no longer true.  Today alimony is gender neutral, at least in theory.  More importantly, alimony is usually not forever. 
Alimony is most common after long term marriages in which one spouse earned most of the money while the other was largely out of the work force serving as a homemaker.  Courts tend to recognize that stay-at-home spouses in that situation (usually women) may be unable to find reasonable work and award long term alimony.  Alimony may also be appropriate after longer term marriages in which both spouses work, but there’s a big difference in their incomes.  The idea in these situations is to more or less equalize the couple’s post divorce standard of living. 
Alimony is unusual after marriages that are less than long term and when both parties earn reasonable incomes.
Alimony is taxable income to the recipient and tax deductible to the payer. 

CHILD CUSTODY
Custody is divided into two parts, legal and physical.  Each part can be held jointly by both parents or solely by one.  Legal custody is concerned with major decisions in the child's life such as schooling and non-emergency medical treatment.  It does not involve day to day issues like lunch or bedtime.  Joint legal custody means parents share responsibility for these larger decisions. 
Physical custody refers to designating the parent with whom the child resides (the custodial parent) and the parent who has visitation rights.  Joint physical custody means the child splits time more or less equally between the homes of both parents.  In the majority of cases, one parent has sole physical custody and legal custody is joint. 
Joint physical custody is possible, but can be difficult because of the transportation problems involved.  It works best when ex-spouses live near one another and are on excellent terms.  The major argument in favor of joint physical custody is that the child is more likely to develop a close relationship with both parents.  I.e., non-custodial parents often feel alienated and shut out of their children’s lives.  The major argument against it is that the child is torn between two households and doesn’t have a stable sense of “home.” 

The Sole Physical Custody Decision
Years ago, physical custody of smaller children if disputed was virtually always awarded to mothers unless they were clearly unfit.  Courts followed the “tender years” doctrine which maintained that small children were better off with their mothers. 
In theory, that's no longer the case, and custody is gender neutral.  Physical custody, if disputed, now goes to the parent who has been the “primary care giver” during the marriage.  However, it isn’t unusual to encounter couples who agree that the father has been the primary care giver or that care giving has been shared more or less equally. 
Courts generally don't give much weight to the custody preferences of children until they're about twelve years old. 
Courts value stability in children's lives, so it's very difficult to force changes in physical custody once awards are made.  Shifts are only made when major changes in circumstances have occurred. 

Visitation
Visitation refers to the non-custodial parent’s right to time with his or her children generally away from the custodial parent.  When ex-spouses expect to behave amicably, divorce agreements usually provide for “reasonable visitation with adequate prior notice to the custodial parent”.  When relationships are hostile, precise visitation schedules must be spelled out in the agreement. 
The most common visitation arrangement is that the non-custodial spouse takes the children on alternate weekends and overnight one weekday every week.  In addition he or she gets them for an extended period during school vacations. 
Holidays are generally separately scheduled.

CHILD SUPPORT
Child support is set in accordance with rigid guidelines that spell out weekly payments to the custodial parent as a function of the non-custodial parent's income with an offset for the custodial parent’s income if it’s over a specified amount.  Rates in Massachusetts are among the highest in the nation.  They range from 21% to more than 30% of the non-custodial parent's gross income, increasing with income and the number of children supported. 
These amounts may be adjusted downward if the custodial parent makes more than $20,000 per year net of child care expenses or if the payer makes payments for children from another marriage.  On the other hand, payments are adjusted upward by 10% when the oldest child turns 13.  Judges have little discretion to alter these guideline figures. 
The guidelines don’t apply if physical custody is joint, but the higher earning parent usually pays the other something which the court must agree is reasonable. 
Child support generally goes on until the child is eighteen and may be extended until age 23 if he or she is in college. 
Child support payments are not tax deductible to the payer nor are they taxable to the receiving parent. 

Health Insurance
Support paying parents who have access to family health insurance through their employment are expected to provide coverage for their children and generally for their ex-spouses if there is little or no extra cost involved.  However, coverage for ex-spouses can be problematic because many employers do not provide it.
Any incremental cost associated with insuring the children is split between the parents through a child support adjustment regardless of which parent actually buys the coverage.
Health insurance after divorce can be complex and is best discussed on a case by case basis.


DISCLAIMER: The material within this web site is provided for information only and does not constitute legal advice for any particular situation.  Readers are strongly advised to seek professional legal counsel before embarking on any course of action.


Estate Planning

DIVORCE IN MASSACHUSETTS

INTRODUCTION
At the start of a divorce most people feel as if they're on an emotional roller coaster heading into a dark and terrifying unknown.  They're roughly aware that the issues include property division, custody, visitation, support, and alimony,  but most don't know much about how the legal system arrives at the end results reflected in divorce agreements.
Divorce Attorney & Mediator
Holden & Worcester Massachusetts
W. R. Lasher Attorney At Law © 2003 - All Rights Reserved
William R. Lasher, PhD
Attorney-At-Law
40 Greystone Drive
Holden, MA 01520
Telephone:  508-829-5211
E-Mail: AttorneyLasher@LasherLaw.com
William R. Lasher, PhD - Attorney At Law Mediator
Finding Solutions
Is Our Business
This page is intended to shed a little light on the subject and, hopefully, to lessen the anxiety of those embarking on the ride.  At the same time the description will highlight some of the differences between adversarial and mediated approaches to divorce.